FCC Net Neutrality Effort All for Show?

Nobody has seen the secret draft of the upcoming Federal Communications Commission proposed rules on net neutrality. No doubt it will be crafted in as balanced a way as such a rule can be.

But it is not immediately clear how the jurisdictional argument can be overcome, namely that the courts already have ruled that the Commission does not have the authority to create a rule, even if it wants to.

No doubt some clever extension of common carrier and ancillary authority will be offered up. But it isn't clear how long the rules will be in force before the inevitable round of court challenges begin.

Having already once rejected the premise that the FCC can assert jurisdiction over networks that manage traffic by prioritizing some types of traffic over others.

No doubt a different basis for jurisdiction will be asserted, and then we'll have to see whether courts will agree. In the end, as sometimes happens in Washington, D.C., some things loudly get done, for political reasons, that even proponents realize will not stand, in the end.

There will be lots of noise, no doubt. Whether there will be rules that can withstand court challenge is among the key issues. Some doubt the rules will succeed in that respect.

Chairman Genachowski’s Next Net Neutrality Proposal: What to Watch For | Electronic Frontier Foundation